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1. brief In December 2008, Wu XX borrowed the name of Weng XX to establish XX Real Estate Co., Ltd., with Weng XX as the legal representative and Wu XX as the general manager. At the same time, Wu Moumou and Weng Moumou signed an agreement, agreeing that the shareholders of the company are Wu Moumou and Weng Moumou. Weng Moumou does not actually contribute capital to the company and does not participate in the operation of the company. All capital contributions of the company are borne by Wu Moumou, and all external responsibilities of the company are borne by Wu Moumou. In January 2010, the legal person of the company was changed from Weng Moumou to Wu Moumou. On February 3, 2010, Weng Moumou reported to the public security that the company's general manager Wu Moumou had embezzled his company's equity. Later, the public security filed a case for investigation with Wu Moumou suspected of falsely reporting registered capital, and took criminal coercive measures against Wu Moumou. Wu Moumou's father then signed the "Agreement" with Weng Moumou to hand over the company's seal, financial information and important documents of the company's development project to Weng Moumou. Later, Jiang Moumou sued the court with a private lending dispute, demanding that the borrower Weng Moumou perform the repayment responsibility, and the guarantor Wu Moumou's company performs joint and several liability for the loan. After the court accepted the case, Jiang Moumou applied to seal up a large number of houses under construction in Wu Moumou Company. After many court sessions, Jiang Moumou submitted an application for withdrawal to the court, and the court allowed him to withdraw the lawsuit. 2. case analysis (I) Weng used the convenience of keeping the company's official seal to forge the loan agreement and let the company provide joint and several liability guarantee for his personal loan. In this case, Wu is the actual shareholder of the company, and Weng is only a nominal shareholder. Weng Moumou kept the company's official seal on his behalf after Wu Moumou was detained by the public security. Therefore, this case needs to examine the authenticity of the loan relationship between Weng and Jiang and the authenticity of the guarantee relationship. First, the issue of the timing of the official seal on the loan agreement between Weng and Jiang. During the signing period of the loan agreement, the company's official seal was kept by Wu, who did not affix the company's official seal to the loan agreement involved. During the trial, Jiang Moumou and Weng Moumou admitted that the company's official seal was stamped by Weng Moumou afterwards. Even if there is a loan relationship, the time when the loan relationship occurs does not match the time when so-and-so crown real estate stamps. Second, according to the agreement signed between Weng and Wu, Weng is not the actual shareholder of the company and has not invested money in the company. Therefore, objectively there is no situation in which Weng has borrowed money for the company's construction in progress. Third, after Weng signed an agreement with Wu's father, the two sides had carried out the company's creditor's rights and debts check, in the handover Weng did not put forward the case of the loan and guarantee. Since the project developed by the company is an urban construction project of the so-and-so sub-district office, the so-and-so sub-district office issued a "certificate" stating that in resolving the dispute between the company and Weng, it had sent personnel to coordinate and reconcile many times. During this period, Weng Moumou himself and his agent never proposed that Weng Moumou borrowed Jiang Moumou's personal money to invest in the company's project, nor provided the company's loan guarantee evidence. Therefore, before Jiang so-and-so sued, the company and the project client so-and-so street office did not know about the loan and guarantee involved. Fourth, the total amount of the four loan agreements involved in the case is as high as more than 3728 million yuan, but the lender Jiang Moumou can not provide the source of these funds, the formation of the loan transactions, the loan process, the way the loan payment and other important evidence that can prove the real occurrence of the loan involved in the case, Jiang Moumou has no evidence to prove that the loan involved in the case actually occurred. Fifth, according to the provisions of Article 16 of the 2011 Company Law, if a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders. The company involved in the case is an independent legal person. Even if Weng is the legal representative and nominal shareholder of the company, he decides to let the company provide joint guarantee liability for his personal loan without a vote of the shareholders' meeting. Because of the violation of the provisions of the company law, it is also an invalid guarantee. (II) Weng and Jiang for the criminal purpose of illegally occupying the company's property, through the fictitious loan agreement and guarantee relationship, the use of civil litigation, defrauding the property of a certain crown, belongs to litigation fraud, the behavior of the two has constituted the crime of fraud. In this case, after the lawsuit, Jiang Moumou filed an application for property preservation against the guarantor to the court. Soon the court made a ruling to seal up the guarantor's house under construction when Jiang Moumou did not provide a full guarantee. It can be seen that the purpose of the lawsuit between Jiang and Weng is to encroach on the property of the guarantor through civil litigation, that is, the two have a clear purpose of illegal possession of the guarantor's property. It must be emphasized here that although Weng Moumou and Jiang Moumou's actions involved in the case objectively meet the constitutive requirements of the crime of false litigation, their subjective intention to illegally occupy the legal property of XX Crown Real Estate Company is very clear. And the behavior involved in the case occurred before the establishment of the crime of false litigation, according to the Supreme People's Court's Interpretation of the (IX) Time Effect of the Criminal Law Amendment, implement false litigation behavior, if the criminal law before the amendment should be investigated for criminal responsibility for the crime of fraud, embezzlement or embezzlement according to the criminal law before the amendment, the relevant provisions of the criminal law before the amendment shall apply. In general, there are only the perpetrator and the victim in fraud. The victim has a misunderstanding due to the perpetrator's deception and disposes of his own property, that is, the victim and the deceived are the same person. However, in practice, there are also cases of triangular fraud in which the victim and the deceived are not the same person. This case is a triangular fraud. The judge involved in the case is the deceived person. Based on the law, he has the right to decide whether a certain crown real estate bears joint and several guarantee liabilities. Therefore, he is the property disposer, but the victim is a certain crown real estate. In this case, the content of Weng's deception was to fabricate the loan and guarantee relationship, which made the trial judge mistakenly believe that the loan relationship and guarantee relationship existed, thus making a civil judgment that the guarantor should bear joint and several guarantee liability for the loan of more than 3728 million yuan involved. Therefore, Weng's behavior belongs to the purpose of illegal possession, through litigation to defraud the guarantor's property, constitute the crime of fraud. (III), Jiang's withdrawal does not belong to the suspension of the crime, but is forced to make a choice based on objective circumstances, which is an attempted crime. In the course of the crime, the perpetrator's influence on the perpetrator needs to be examined whether the factor other than the will causes the perpetrator to stop continuing the crime, which constitutes the suspension of the crime or the attempted crime. If factors other than will occur, but are not sufficient to prevent the continuation of the crime, and the perpetrator voluntarily gives up the crime based on such unfavorable conditions, it shall be the suspension of the crime; if a phenomenon other than will occurs and is sufficient to prevent the perpetrator from continuing to commit the crime, it shall be an attempt to commit the crime. In this case, Weng Moumou did not intend to let the guarantor XXX company participate in the trial. Weng Moumou entrusted his colleague Pan Moumou to participate in the trial on behalf of the guarantor by using the official seal and invalid business license and other materials to cooperate with him to complete the fraud crime. After Wu Moumou inadvertently learned of the lawsuit involved, Weng Moumou prevented the person entrusted by Wu Moumou from attending the trial. After the agent entrusted by Wu participated in the trial, many questions were raised about the loan and guarantee relationship in this case, and Jiang could not provide a reasonable explanation. After many court sessions, Jiang was forced to apply to the court for withdrawal after realizing that the criminal purpose of the two men could not be realized. Therefore, the criminal state of the two men is not a crime suspension, but an attempted crime.. The criminal acts of (IV) Weng and Jiang are still within the statute of limitations. Weng Moumou colluded with Jiang Moumou to fabricate the loan agreement and guarantee relationship, the total amount was as high as more than 3728 million yuan, and the guarantor Moumou Company was jointly and severally liable for the loan of more than 3728 million yuan, that is, the two persons intended to defraud the guarantor of more than 3728 million yuan worth of property through litigation. According to the sentencing regulations of Shandong Province on the crime of fraud, if the amount of fraud is 500000 yuan or more, it belongs to a particularly large amount, and shall be sentenced to fixed-term imprisonment of more than ten years or life imprisonment, and a fine or confiscation of property. According to the above provisions, Weng's fraud obviously belongs to the "extremely large amount" and should be sentenced within the scope of fixed-term imprisonment of more than ten years or even life imprisonment. According to Article 87 of my country's Criminal Law, crimes will no longer be prosecuted after the following periods: if the legal maximum sentence is less than 5 years of fixed-term imprisonment, the limitation of prosecution is 5 years; if the legal maximum sentence is more than 5 years but less than 10 years of fixed-term imprisonment, The limitation of prosecution is 10 years; if the legal maximum sentence is more than 10 years, after 15 years; if the legal maximum sentence is life imprisonment or death, after 20 years. The maximum legal penalty for fraud by Weng Moumou is life imprisonment, so the prosecution is still 20 years, and the criminal acts of the two are still within the statute of limitations and can be investigated for criminal responsibility. In summary, according to the provisions of Article 266 of my country's Criminal Law on the crime of fraud, Weng Moumou and Jiang Moumou fabricated the loan agreement and guarantee relationship, intending to embezzle the guarantor's property through civil litigation, and their actions have been suspected of fraud. Because the guarantor found out and participated in the civil action in time, the illegal possession purpose of Weng and Jiang was not realized, and it was an attempted fraud.
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On December 30, at the invitation of Shandong Investment and Financing Guarantee Group Co., Ltd., lawyer Shi Guangbo, deputy director and senior partner of Zhongcheng Qingtai Jinan Institute, conducted a special training on "Enterprise Compliance" for the company. Under the theme of "From Legal Risk Management to Compliance Management", lawyer Shi Guangbo explained what compliance is and how to build a compliance system from the aspects of risk understanding, the rise and development of compliance, and the compliance requirements of state-owned enterprises, interpreted the key points of compliance management, and described the relationship between compliance and internal control, legal affairs, wind control, audit and other work of state-owned enterprises, combined with the actual situation of the enterprise, the specific path and way of building the compliance system are put forward. This training is rich in content and clear in system, clarifying the concepts and connotations related to compliance, helping employees of the provincial investment and financing guarantee group to more accurately understand the essence of corporate compliance and the path of building a compliance system, and is well received by the trainees. In recent years, "enterprise compliance" has been paid more and more attention. At the national level, documents such as "Guidelines for Compliance Management of Central Enterprises (Trial)" and "Guidelines for Compliance Management System" have been formulated. Hebei, Shanghai, Shandong, Jiangsu, Guangdong and other provinces and cities have also issued guidelines for compliance management of local state-owned enterprises. Compliance management has become a new requirement for deepening the risk management of state-owned enterprises. Zhongcheng Qingtai Law Firm attaches great importance to the construction and improvement of the professional capacity of "corporate compliance" services, has set up a special team, strengthened the research and development of "corporate compliance" legal service products, and has provided "corporate compliance" special laws for many large enterprises service.
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Viewpoint | Judgment and Analysis of the Application of Article 77 of the Patent Law
Article 77 of the "Patent Law of the the People's Republic of China" (hereinafter referred to as the "Patent Law") "The use, promise to sell or sell a patent infringing product that is not known to be manufactured and sold without the permission of the patentee for production and business purposes, can prove The legal source of the product shall not be liable for compensation." The content of this article is usually referred to as the "legal source defense" or the "sale/user non-infringement clause". However, in practice, the specific subject can be applied to the defense of this clause, but also according to the actual case, its role in the case and other comprehensive judgment. Example 1: Company A intends to obtain a certain product. It organizes personnel to design and complete the preliminary finalization of the product. However, because it has no actual production capacity, it chooses to hand over the design drawings to Company B. Both parties sign a contract called "Sales Contract", which stipulates that Company B will produce the products according to the design drawings provided by Company A and then sell them to Company A at a certain price, after company B delivered the product to company A according to the contract. Unfortunately, this product fell within the scope of protection of a certain patent right of Company C. Later, Company C sued Company A and Company B for infringement. During the litigation process, Company A presented the "Sales Contract" and the performance certificate, and defended against non-infringement on the grounds of Article 77 of the Patent Law. Example 2: Company B has a variety of products on sale, and also makes its products into brochures and other promotional materials to the market to promote its own products. Company A is interested in one of its products after obtaining Company B's product atlas. After Company A orders this product from Company B, both parties sign a contract called "Sales Contract", which stipulates that Company B will produce the products in its product atlas, and then Company B will deliver the products to Company A according to the contract. Unfortunately, this product fell within the scope of protection of a certain patent right of Company C. Later, Company C sued Company A and Company B for infringement. During the litigation process, Company A presented the "Sales Contract" and the performance certificate, and defended against non-infringement on the grounds of Article 77 of the Patent Law. The author believes that in the above two cases, Company A in Case 1 cannot apply the provisions of Article 77 of the Patent Law and should bear the liability for infringement and compensation. Company A in case 2 applies the provisions of Article 77 of the Patent Law and is only liable to stop the infringement without paying compensation for the following reasons: In Case 1, the design of the accused infringing product was completed by Company A, and when Company A ordered the accused infringing product to Company B, it had already provided the design drawings of the accused infringing product and explicitly required Company B to produce according to the design drawings. In the case of Company A explicitly designated design, whether it is made by Company B or by someone else, the alleged infringing products manufactured by Company B in accordance with the contract are unique, that is, they will inevitably fall into the scope of patent protection of Company C constitute infringement. Although the contract signed by Company A and Company B is called "Sales Contract", in fact, Company A has completed the pre-design and finalization of the accused infringing product, that is, it has participated in part of the production and manufacturing, so it is in line with the producer rather than the seller's identity. Therefore, the acts of Company A and Company B belong to the producers who jointly produce the accused infringing products, and Article 77 of the Patent Law cannot be applied. In case 2, although company B still produces according to the design designated by company A, because the design is made by company B itself and has nothing to do with company A, company A only chooses a certain product designed by party B based on its own needs, which is a typical purchase behavior, and then company B produces the accused infringing product according to its own design, and sell the product to Company A. In the whole process, Company A did not participate in any production process of the accused infringing products, and it can invoke Article 77 of the Patent Law to defend itself. With the improvement of China's socialist market economy, various new models of production and sales emerge one after another, but no matter what the model is, the judgment of the identity of the sales/user of Article 77 of the Patent Law should always be based on the substantive role played by the relevant responsible person in the infringement to judge whether the provision can be applied.
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Foreword In recent years, with the landing and implementation of a large number of PPP projects, PPP project disputes have begun to emerge. The legal relationship of PPP project is complex, the contract system of PPP project is complex, and because China has not yet issued a unified PPP legislation, the handling of PPP project disputes is facing a lot of confusion. Based on a typical administrative dispute case issued by the Higher People's Court of Shandong Province, this paper discusses the legal issues related to the exercise of the unilateral discharge right of the government of PPP contract. Introduction of 1. case In October 2007, a solid waste company and the Jinan Environmental Protection Bureau signed the "Jinan City Medical Waste Centralized Disposal Project Franchise Agreement", and obtained the exclusive franchise for the centralized disposal of all medical waste in Jinan, with a concession period of 25 years. Due to the continuous increase in the amount of medical waste treatment, a solid waste company proposed in 2014 to designate the southeast corner of the Jinan Municipal Domestic Waste Treatment Center as a new site, and the Jinan Environmental Protection Bureau required it to build a new centralized disposal facility in the first half of 2015. Put into use. However, in the process of specific site selection of the project, due to the non-cooperation of nearby villagers, the environmental impact assessment of the project cannot be completed and the follow-up cannot be promoted. On August 10, 2015, the Municipal Environmental Protection Bureau issued a preparatory notice, pointing out that a solid waste company was facing the problem that the hazardous waste business license and the temporary fixed-point planning of the existing disposal site were about to expire, and required the company to take substantive measures, otherwise it would terminate the franchise agreement. On September 11, 2015, the Jinan municipal government agreed to terminate the franchise agreement of a solid waste company in accordance with the procedure in the form of minutes of the meeting. On September 15, 2015, the Environmental Protection Bureau issued a notice to a solid waste company to terminate the franchise agreement. A solid waste company refused to accept, successively filed administrative reconsideration and administrative litigation, requesting the cancellation of the notice of termination of the franchise agreement, and the municipal government and the Municipal Environmental Protection Bureau to compensate for the corresponding losses. The first-instance judgment of the Jinan Intermediate People's Court: the 1. rejected the plaintiff's request to revoke the defendant's Municipal Environmental Protection Bureau's ''Notice'' for the recovery of the franchise; the 2. defendant's Municipal Environmental Protection Bureau will withdraw the franchise within 30 days from the effective date of this judgment. The right to make a compensation decision for the losses caused to the plaintiff; the 3. rejected the plaintiff's other claims. After the second instance of the Shandong Provincial Higher People's Court and the retrial of the Supreme People's Court, the first instance judgment was upheld. Causes of 2. disputes-problems such as site selection and planning procedures in the early stage of project construction have not been properly handled. Judging from the content stated in the judgment document of the case, the Jinan medical waste centralized disposal project has inherent problems such as "temporary land" and "site selection" from the beginning. The construction land of the centralized disposal site for medical waste involved in the case is "temporary land", and the problem of construction land for the project has not been properly solved until the incident, and a solid waste company has repeatedly written to the environmental protection department on this issue. finally, it will be "temporarily solved" by extending the temporary transition period of land use twice ". Regarding the location of the permanent land for the project, the Jinan City Planning Bureau and other departments agreed to the new site proposed by a solid waste company. However, in the specific site selection process, the villagers in the surrounding villages did not cooperate, resulting in the project environmental impact assessment The work cannot be completed and the follow-up cannot be promoted. A solid waste company has written to the Environmental Protection Bureau several times, requesting to be coordinated and resolved. Due to the inability to complete a series of project construction procedures such as environmental assessment and site selection, the Environmental Protection Bureau terminated the franchise agreement on the grounds that "the hazardous waste business license and the temporary fixed-point planning of existing disposal sites expire. PPP projects are mainly applicable to infrastructure, public utilities and public services, and are closely related to the public interest, and the construction and operation process of the project is highly concerned by the public. Especially for public utility projects such as garbage treatment, sewage treatment, waste disposal, incineration and power generation, the acceptance and cooperation of the surrounding public to the project directly affects the smooth development of the project. This requires that the development of PPP projects must do a good job in preliminary planning and site selection, obtain project land in accordance with the law, and reserve space for long-term project bidding and expansion, and at the same time do a good job in information disclosure, communication, and benefit compensation to avoid project construction Public resistance in the process ensures the continuous and stable development of the project within the entire life cycle of more than ten years. At the same time, in the project contract, it is clearly agreed to handle the project construction procedures, deal with the public boycott of the responsibility of the main body and risk sharing, to avoid the actual occurrence of the later, but also for the occurrence of disputes to define the responsibilities of the parties to pre-set the corresponding contract basis. The government party's unilateral discharge right 3. PPP project contract. (I) unilateral rescission right based on public interest considerations The legal nature of PPP project contract is still inconclusive in the theoretical circle, mainly the nature of private law (general civil and commercial contracts), the nature of public law (administrative agreements) and the mixed nature of public and private (both civil and commercial contracts and administrative agreements). However, no matter how it is characterized, the nature of its "agreement" cannot be denied. Once the agreement is signed, it cannot be changed and terminated at will without legal reasons or legal procedures. After the PPP contract comes into effect, the project contract can be terminated based on the express breach of contract, the achievement of termination conditions, force majeure, serious breach of contract and other reasons stipulated in the Contract Law, and both parties can exercise the right of termination. However, PPP contract is not an ordinary civil contract formed entirely on the basis of private law autonomy, because one party is the administrative organ, the contract involves the administrative authority of the administrative organ, the purpose of the contract is for the public interest and other factors, PPP contract termination is different from the general civil and commercial contract. The second paragraph of Article 105 of the "Administrative Procedure Regulations of Shandong Province" stipulates: "In the course of the performance of an administrative contract, if a major situation that seriously damages the national interest or the public interest occurs, the administrative agency has the right to modify or terminate the contract". Therefore, compared with the general civil and commercial contract, the termination of PPP contract has a certain particularity, the government in order to protect the public interest in the specific circumstances of the right to unilaterally terminate the PPP contract. The judgment of the legality of the unilateral exercise of the right of rescission by the (II). According to the decision of the people's court in the above-mentioned case, the judgment of the government party to unilaterally terminate the PPP contract should be considered from the following three aspects: 1, the main body, whether there is a unilateral release of the "authority" In the above-mentioned case, the court found that according to the franchise agreement involved in the case, the municipal government is the authorized subject of the Jinan medical waste centralized disposal franchise, and the Municipal Environmental Protection Bureau has been authorized by the municipal government to sign an agreement on behalf of the municipal government, grant the franchise, and have the right to terminate the agreement and receive the franchise. Therefore, the Municipal Environmental Protection Bureau has the authority to grant and recover the franchise in accordance with the law. Moreover, the decision of the Municipal Environmental Protection Bureau to withdraw the franchise has been approved by the municipal government, and its authority and responsibilities have been confirmed by the municipal government. Therefore, the government party to terminate the PPP contract subject needs to have the subject qualification stipulated in the contract, that is, "in accordance with the contract" has the period of termination of the contract. 2, the entity, whether to meet the unilateral release of the "conditions" In the above-mentioned case, the people's court determined that the new project could not pass the environmental impact assessment due to the non-cooperation of the villagers near the site selection, and that a solid waste company could not fulfill the obligations of rebuilding, expanding and rebuilding the facilities, equipment and pollution prevention facilities for centralized disposal of medical waste as agreed in the agreement. As the centralized disposal of medical waste involves social and public interests, after the temporary fixed-point planning of the existing disposal site expires, it is unable to build new centralized disposal facilities, unable to perform the obligation of centralized disposal of medical waste stipulated in the Agreement, endangering the social and public interests, resulting in the failure to realize the purpose of the contract. According to the relevant provisions of the the People's Republic of China Contract Law and the Administrative Procedure Regulations of Shandong Province, "During the performance of administrative contracts, there are major circumstances that seriously damage the national or public interests, the administrative organ has the right to change or terminate the contract", and the conditions for the recovery of the franchise have been fulfilled. It can be seen that the government needs to unilaterally terminate the contract in accordance with the law due to the public interest, and the following two conditions must be met: first, the contract has a clear agreement on the relevant obligations. 3. Procedurally, whether the "procedure" for unilateral termination is carried out in accordance with the law" According to the provisions of Article 51 of the Measures for the Administration of Franchising of Infrastructure and Public Utilities, if a franchisee considers that a specific administrative act made by an administrative organ infringes upon its legitimate rights and interests, it shall have the right to state and defend itself, and may file an administrative reconsideration or administrative lawsuit in accordance with the law. In the above case, before taking back the franchise right, the Municipal Environmental Protection Bureau has served a preliminary notice of termination to a solid waste company, requiring it to submit a written reply and take substantive measures, which should be regarded as a protection of its right to know and statement. Accordingly, it is not improper to find that the procedure for making the alleged act was lawful. Therefore, when the government unilaterally terminates the PPP project contract, it should give the social capital party the right to state and defend itself, fulfill the necessary obligation to inform, and avoid constituting a procedural violation. In addition, according to Article 38 of the measures for the Administration of Infrastructure and Public Utilities Franchise: "during the franchise period, due to serious breach of contract or force majeure by one party to the franchise agreement, the franchisee is unable to continue to perform the obligations agreed in the agreement, or if there is an early termination of the agreement as agreed in the franchise agreement, the agreement may be terminated in advance after consultation with the creditors." Although the court in the above-mentioned case did not support the solid waste company's claim that the Environmental Protection Bureau did not reach an agreement with its creditors on the grounds that a solid waste company did not provide evidence, we believe that "consensus with creditors" is one of the procedures that the government should perform unilaterally to terminate the PPP contract. On the one hand, it is because the "Infrastructure and Public Utilities Franchise Management Measures" has clear provisions on this, on the other hand, almost all require a large amount of financing, after the termination of the contract need to properly project follow-up funding needs, creditor interests protection and other issues. The application of legal norms 4. the unilateral termination of PPP contracts. Article 3 of the measures for the Administration of Infrastructure and Public Utilities franchising stipulates: "the term" infrastructure and public utilities franchising "as mentioned in these measures refers to the fact that the government authorizes legal persons or other organizations the People's Republic of China at home and abroad by means of competition in accordance with the law, clarify their rights and obligations and risk sharing through agreements, and stipulate that they will invest in the construction and operation of infrastructure and public utilities within a certain period and scope and obtain profits. Provide public goods or public services." The "Agreement" involved in the case is an agreement between the Municipal Environmental Protection Bureau and a solid waste company on the franchise of the centralized disposal project of medical waste. It has the content of rights and obligations in administrative law. It is an administrative agreement and is subject to the adjustment of this method. Article 14 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Litigation Law" stipulates: "The people's court examines whether the administrative agency has performed in accordance with the law, performed the agreement in accordance with the agreement, or unilaterally changed or terminated the agreement is legal. While applying administrative laws and regulations, civil laws and regulations that do not violate the mandatory provisions of the Administrative Law and the Administrative Litigation Law may be applied." The the People's Republic of China Contract Law, as a civil legal norm for regulating contractual relations, can be applied by reference to administrative agreements. Article 8 of this Law stipulates that contracts established in accordance with the law shall be protected by law. The people's court determined that the meaning of the "Agreement" involved in the case was true and did not violate the prohibitive provisions of laws and administrative regulations. It should be determined to be legal and valid, and both parties should perform corresponding obligations in accordance with the agreement. Based on this, although the PPP contract has public law factors, even if the dispute over the right of rescission is resolved through administrative litigation, the realization of the purpose of the contract mainly stems from the "agreement" between the parties, and the civil and commercial legal norms such as contract law and the general principles of civil law can still be applied. Dispute resolution 5. the unilateral termination of PPP contracts. (I) disputes involving franchising should be submitted to administrative proceedings. The above-mentioned case as a government franchise agreement dispute, through the way of administrative litigation, the reason is that China's administrative procedure law on the government franchise agreement dispute resolution way has clear provisions. According to Article 12 of the new Administrative Litigation Law revised in November 2014 and Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Litigation Law implemented on May 1, 2015, disputes over government franchise agreements fall within the scope of administrative litigation. Before the above-mentioned new Administrative Litigation Law, the franchise agreement to whether a civil and commercial dispute or an administrative dispute is still inconclusive, judicial practice is also inconsistent, some as a civil and commercial dispute submitted to arbitration, some government parties take the initiative to propose is a civil lawsuit. The new Administrative Procedure Law and the judicial interpretation have solved this problem, making it clear that the franchise agreement dispute belongs to the administrative agreement dispute, and the administrative lawsuit should be brought. Accordingly, if the franchise part of the PPP project is separate from the other parts and is a separate franchise agreement, the dispute over the separate franchise agreement should be submitted to administrative proceedings. (II) disputes unrelated to the franchise should be given to the parties to choose In the case of Hong Kong Stall Industrial (Group) Co., Ltd. suing Taizhou Municipal People's government for investment promotion agreement ((2017) Supreme Law Bank No. 99), the Supreme People's court held that "civil agreement and administrative agreement, civil litigation and administrative litigation generally only have the function of legal division of labor and jurisdiction guidance. The trial of administrative agreement cases should not only apply administrative legal norms, but also apply civil legal norms that do not violate the mandatory provisions of administrative law and administrative procedure law. In practice, civil agreements may be referred to the administrative tribunal, and administrative agreements may also be referred to the civil tribunal. To distinguish between civil agreements and administrative agreements, civil litigation and administrative litigation, more consideration should be given to the convenience of trial, the effectiveness of dispute resolution, the authority of judgment results, and the consistency of judgment standards between higher and lower courts. Litigation is more conducive to the supervision of administrative power and the maintenance of public interests." Based on the public interest and agreement of PPP contract, the agreement on civil rights and obligations and the agreement on administrative rights and obligations are often intertwined and difficult to completely separate. The content of PPP contracts often involves construction, finance, land and other administrative management fields, and a number of administrative management functions. To review PPP contracts, it is necessary to consider whether it is true voluntary and consensus between the parties, and it should also consider administration. Specific legal regulations in the field, the binding force of the agreement on local governments and their functional departments, and the application of the principle of relativity of contracts. Compared with the civil procedure, the administrative procedure is more conducive to a comprehensive review of the legality and contract of the provisions of the administrative legal norms in the agreement. If social capital, as the plaintiff, has the right to choose in accordance with the law on issues such as the claim, the type of action and the subject matter of the action, it has the right to sue for all or part of the PPP contract. If the dispute does not involve the content of the government franchise, it is not necessary to choose to resolve the dispute through civil litigation. Moreover, if the remedy of civil litigation is excluded, when the social capital party defaults, the government cannot claim rights through civil litigation, and it is not conducive to the government's protection of rights and interests in accordance with the law.
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Viewpoint | Read in one article-How to set up a legal and effective family trust in China
Introduction As a complex legal and financial instrument with the characteristics of risk isolation, wealth management and inheritance, family trust has attracted more and more attention and favor of high net worth people in China in recent years. With the introduction of new capital management regulations, family trust business has gradually emerged in China in recent years, but high net worth clients still have a very vague understanding of domestic family trust, especially in recent years, the first domestic family trust preservation case in Hubei Province (2020 E 01 Zhibao No. 230) and the Lunan Pharmaceutical family equity trust dispute in Shandong Province, high net worth clients have greater doubts about setting up family trusts in the country. So how to prevent the family trust from being identified as a false trust (Sham Trust), so as to avoid the trust being broken down by the regulatory authorities, the judiciary or creditors, in the establishment of the family trust is particularly critical. From the perspective of law, this paper discusses how to set up a legal and effective family trust for high net worth clients in China, starting from the meaning of family trust, the establishment conditions, the establishment process and the role of lawyers in the establishment of family trust. Regulatory Definition of 1. Family Trust On August 17, 2018, the Trust Supervision and Management Department of the China Banking and Insurance Regulatory Commission issued the "Notice on Strengthening the Regulation of Trust Supervision during the Transition Period of Asset Management Business" (Trust Letter [2018] No. 37). This is the first time that my country has given a clear definition of "family trust" from a regulatory perspective. The document clearly states: "Family trust refers to the trust business in which the trust company accepts the entrustment of a single individual or family, takes the protection, inheritance and management of family wealth as the main trust purpose, and provides customized affairs management and financial services such as property planning, risk isolation, asset allocation, children's education, family governance, public welfare (charity) undertakings, etc. The main purpose of the trust is to preserve and increase the value of the trust property, and the trust business with the nature of special account financial management and asset management attributes is not a family trust." While actively encouraging trust companies to develop family trust business in China, the regulatory authorities have also released a signal to strengthen the supervision of family trusts, and made it clear: "The trust supervision offices of all banking regulatory bureaus shall, in accordance with the principle of" substance is more important than form ", strengthen the supervision of all kinds of trust businesses and innovative products, restore the essence of their businesses and risks, and apply one regulatory standard for similar businesses. The transaction management trust business should be treated differently, strictly control the legal compliance of the purpose of the trust, the source and use of the trust assets, strictly control the transaction management trust business that facilitates the regulatory arbitrage and violations of the law, and support the trust companies to carry out the transaction management trust business that meets the regulatory requirements and invests funds into the real economy." Statutory conditions for the establishment of 2. family trusts. (1) Legitimate purpose The "purpose of the trust" is a prerequisite for the establishment of the trust act. For example, the purpose of entrusting management to use assets, seek asset appreciation, isolate risk, and pass on wealth must be legal and possible, otherwise the establishment of the trust cannot be confirmed. The establishment of a family trust must have a legitimate trust purpose, the regulatory authorities have made it clear that the family trust is the protection, inheritance and management of family wealth as the main trust purpose, the transfer of assets, malicious evasion of debt, concealment of illegal income, money laundering, tax evasion and other illegal purposes are not protected by law. First of all, from the general law point of view, the establishment of a family trust is a civil legal act. According to the provisions of Article 143 of the Civil Code, three conditions shall be met for the validity of a civil legal act: 1. The perpetrator has the corresponding capacity for civil conduct; 2. The meaning is true; 3. It does not violate the mandatory provisions of laws and administrative regulations and does not violate public order and good customs. Secondly, from the perspective of special law, the Trust Law further stipulates that the trust must have a legitimate purpose. A trust with an "illegal purpose" can be roughly in the following four situations: first, the purpose of the trust violates relevant laws and administrative regulations, for example, for organizations or activities prohibited by laws and administrative regulations, such as terrorist organizations, cult organizations, anti-government organizations, and so on, financial support cannot be provided through the trust; second, the purpose of the trust harms the public interest; third, a trust is established specifically for the purpose of litigation or debt collection; fourth, the establishment of a trust harms the interests of its creditors. 2. Legal property Trust belongs to a property management system, with trust property as the center, if there is no trust property, the family trust will lose the value of existence. This requires that the settlor must have certain and legal property to establish the trust. (1) Determined property. The certainty of trust property should include three aspects of certainty, one is the certainty of the existence of trust property, the other is the certainty of the scope of trust property, and the third is the certainty of the ownership of trust property. The certainty of these three aspects first requires that the settlor cannot use property that does not exist or no longer exists as trust property; secondly, the property that requires the settlor to establish the trust has a clear and definite scope, which can be clearly distinguished from the settlor's other property; Thirdly, there is no dispute over the property ownership that requires the settlor to establish the trust. As for the type of property, the Trust Law and the regulatory authorities do not make clear restrictions, cash assets, movable property, real estate, equity/shares, stocks, funds, etc. However, at present, China's trust property registration system is not complete, in reality, for real property rights, aircraft, ships and aircraft and other special movable property, intellectual property rights and other property that need to change the registration of property rights, local registration authorities and tax authorities have different standards. Therefore, the availability of registration and tax costs are the main factors for customers to consider whether to include the corresponding assets. During the two sessions this year, Xiao Gang, a member of the National Committee of the Chinese People's Political Consultative Conference and former chairman of the China Securities Regulatory Commission, pointed out that private entrepreneurs will face major challenges in large-scale intergenerational inheritance in the next 10 to 20 years. The protection and inheritance of the wealth of private entrepreneurs not only involves the sustainable development of private enterprises themselves, but also involves a series of important issues such as economic growth, employment expansion, private investment, and the role of the third distribution to promote common prosperity. There is an urgent need to take precautions and strengthen Top-level design. However, the non-transactional transfer system of trust property is missing. Due to the vague provisions of the trust law itself, in practice, it is impossible to handle the non-transaction transfer of trust property directly according to the trust documents, which seriously restricts the establishment of non-capital family trusts and weakens the core function of private enterprises to use family trusts to realize the inheritance of equity property. Therefore, he suggested that the trust system should be improved in four aspects, such as amending the trust law, establishing the infrastructure supporting the family trust, introducing the judicial interpretation of the trust law and strengthening the supervision, so as to promote the implementation of the family trust. ② Legally held and allowed to circulate. According to the provisions of China's Trust Law, the property for the establishment of a family trust must be the property legally held by the principal and cannot be property that is restricted in circulation without approval. If the trustor establishes a trust with illegal property, the trust is invalid. For example, property acquired by illegal means such as theft, embezzlement or robbery, as well as property restricted in circulation without authorization, cannot be used as property for the establishment of a trust. ③ Legal tax payment. In the process of setting up a family trust, due diligence is required on the trust property of the settlor. For example, for cash assets, the settlor must issue income certificates, other certificates of obtaining the cash assets and tax payment certificates. Therefore, when setting up a family trust, it must be ensured that every asset injected into the family trust is the private undisputed property of the settlor that is legal, compliant and tax-paid. ④ Requirements for asset size. In our country, there is an asset size requirement for the establishment of a family trust, which requires that the amount or value of the family trust property be not less than $10 million. This requirement also makes family trusts mainly a way of "wealth security" and "asset inheritance" for high net worth clients. The setting of the asset size threshold is one of the main features that distinguish family trusts from other transactional trusts. 3. Subject requirements ① Principal: In China, the principal who establishes a trust must currently be a natural person with full civil capacity. In the case of a family trust, the settlor may be a single individual or family, and a single individual is a natural person with full civil capacity. The concept of the family, on the other hand, refers to the members of the family living together, in accordance with the general criteria for the concept of "family" in the Civil Code. As for "family members", my country's "Civil Code" also explains this, clarifying that spouses, parents, children and other close relatives living together are family members. It follows that in our establishment of a family trust, the settlor can be a natural person with full civil capacity or a family, I .e. a family of spouses, parents, children and other close relatives living together as the settlor. However, in order to clarify the property ownership relationship, the situation of taking the family as the principal needs more complex asset investigation and design the corresponding trust terms, so as to avoid the legal risk of trust property in the process of establishment, management and liquidation. ② Trustee: Trust Company. In China, a trust company is a financial institution established in accordance with the the People's Republic of China Company Law and the Measures for the Administration of Trust Companies, which is mainly engaged in trust business. For family trusts, the trust company can act as a trustee, accept the entrustment of a single individual or family, with the protection, inheritance and management of family wealth as the main purpose of the trust, to provide the trustee with customized transaction management and financial services trust business. ③ Beneficiary: The beneficiary is the person who can enjoy the benefit of the trust in the trust. The settlor may be the beneficiary or the sole beneficiary of the same trust. For family trusts, beneficiaries should include family members, I .e. spouses, parents, children and other close relatives living together. 4, family trust establishment form requirements. In our country, the establishment of a family trust should be in writing and completed by the formation of a trust contract. In the written document for the establishment of a family trust, the following shall be stated: (I) fiduciary purposes; The name or title and domicile of the (II) trustor or trustee; (III) beneficiary or range of beneficiaries; (IV) the scope, type and condition of the trust property; The form and method by which the (V) beneficiary obtains the benefit of the trust. 3. establishment process The process of establishing a family trust is generally implemented gradually in accordance with the steps of intention communication, background investigation, property due diligence, scheme design and communication, trust company project application and approval, filing with the regulatory authorities, project establishment, and investment allocation. However, the channels for high-net-worth individuals to set up family trusts are different. In addition to eventually landing in trust companies, many high-net-worth clients initiate the establishment of family trusts through private banks, insurance companies, securities companies, wealth management companies, family offices and other institutions. Therefore, the establishment process is slightly different. The role of 4. lawyers in the establishment of family trusts. At present, China's family trust business has been more and more high net worth people's attention, but the family trust in our country is still in the early stage of development. Whether a specific family trust can eventually play the role of risk isolation and wealth inheritance after its establishment still needs time to verify. Family trust, as the top-level design of all the wealth under the name of high net worth clients, integrates the protection, management and inheritance of all kinds of property, and integrates the comprehensive knowledge of law, taxation, insurance, investment, corporate structure, foundation, charity, wealth management and asset management, and is generally known as the service at the top of the wealth management business pyramid. Family trusts are mostly personalized service products with many design risk points. It is difficult for general financial practitioners to fully control the relevant legal risks. In the whole family trust design, strong comprehensive legal knowledge and litigation risk control ability are required. In order to control risks and costs, whether it is a private bank, insurance company, trust company, securities company or wealth management company, it is more inclined to let customers use standardized establishment methods, but this kind of service is difficult to meet the personalized needs of customers. Lawyers, as professionals with professional legal knowledge and legal policy acumen, play a very important role in the family trust business, and can assist high net worth people with their professional knowledge reserves to achieve the fundamental purpose of risk isolation and wealth inheritance. So as a lawyer, in practice should be how to assist high net worth clients, to achieve the establishment of family trust? First of all, for the principal who has the intention to establish a family trust, we can conduct a preliminary communication to understand the establishment needs and assets of the principal, and make a preliminary assessment of whether the conditions for the establishment of a family trust are met. Secondly, a confidentiality agreement should be signed with the settlor who has the conditions and intention to establish a family trust after initial communication, regardless of whether the final family trust is successfully established, priority should be given to ensuring the security and secrecy of the settlor and property information. Third, conduct due diligence on the trustee's trust property. Focusing on the identity of the family trust principal and beneficiary, the ownership and status of the trust property, and the principal's debts, the legality of the trust property shall be carefully examined in accordance with the principle of prudence stipulated by relevant laws to ensure the validity of the establishment of the trust property. Fourth, the formation of a preliminary family trust program. According to the wishes of the principal and the relevant materials obtained through the preliminary due diligence, a preliminary trust plan is formed. Fifth, the selection of cooperation agencies. The client needs to carefully choose the trustee, that is, the trust company. The professionalism and reliability of the trust company are very important. Choosing a trustworthy trust company is the key to the safety of trust assets. At the same time, it is also necessary to consider the trust company and the other required for the establishment of a family trust. The fees of the intermediary agency and the client's affordability, law firms and lawyers have rich intermediary agency resources, can be used as leaders to connect with the client, ultimately, assist the settlor in determining the selection of trust companies and other intermediaries. Sixth, determine the formal program. After the selection of the intermediary, the law firm and the trust company jointly determine a formal family trust plan for the relevant materials collected in the previous period. Seventh, the drafting of trust documents. A family trust is a set of legal contracts that agree on the rights and obligations of multiple stakeholders, such as the principal, trustee, beneficiary and protector, to the entrusted assets. The relationship between these stakeholders will change greatly over time, and this dynamic may cause new conflicts of interest. Therefore, under the premise of combining the current situation, in order to safeguard the interests of the client, it is an essential job for lawyers to draft and revise the relevant documents in the family trust business. Eighth, the plan is implemented on the ground. The family trust scheme must land in order to finally achieve the purpose of establishment. The transfer of the principal's trust property and the supervision of whether the trustee establishes a separate account is the core and key of the entire family trust. In this process, the lawyer may assist the principal in transferring the trust property, such as funds, to a separate account under the trustee's control in accordance with the trust contract to ensure the final implementation of the trust program.
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1. brief An investment holding company and a company signed the Agreement on the Transfer of State-owned Property Rights, which agreed on the principle that the employment and placement of employees should follow the asset business and agreed that the transferee of property rights would undertake to carry out the employment and placement of employees of the target company in accordance with the relevant provisions and the provisions of the restructured employee placement plan. After the signing of the Agreement on the Transfer of State-owned Property Rights, an investment holding company has fulfilled the registration of the equity change of the target company. However, after the signing of the property rights transfer agreement, the property rights transferee and the target company did not fulfill the obligation of employee placement, resulting in long-term letters and visits by employees, forming a group incident. After that, an investment holding company paid hundreds of millions of yuan in employee placement fees from the perspective of easing labor conflicts and harmonious social relations. The target company and the property rights transferee believe that the State-owned Property Rights Transfer Agreement stipulates that an investment holding company has the coordination obligation to change the land auction of the target company to commercial and residential land and return the land income. As the land income has not been returned, the target company and the property rights transferee do not have the funds to fulfill the employee resettlement obligation. The plaintiff's investment holding company shall bear the increase in resettlement costs due to the delay in fulfilling the resettlement obligation. 2. Case Analysis An investment holding company has repeatedly litigated with the transferee of property rights and the target company on the issue of employee placement, and has now been judged by the Intermediate Court, the High Court and the Supreme Court on the subject of employee placement obligations and the basis of the claim of an investment holding company. (I) clarify the subject and responsibility of the target company's employee placement obligations after the transfer of property rights, and clarify the legal relationship between the advance payment of employee placement costs. 1. From the perspective of the historical evolution of the restructured enterprise, the target company has been changed into the current company through restructuring, the legal entity continues, and the labor relations of employees are naturally postponed, including continuing to sign labor contracts, paying social insurance, handling employee retirement procedures, etc. The target company has not changed as an employing unit, so it is necessary for the target company to be responsible for the obligation of employee resettlement. 2. According to the agreement on the transfer of property rights, the new company will receive all the employees of the original enterprise after the restructuring according to the principle that the employment of employees follows the asset business. According to the contract, the "Restructured Employee Resettlement Plan" is legally binding on the new company and the property rights transferee, and the property rights transferee undertakes to ensure that the new company strictly fulfills the corresponding rights and obligations to the employees in accordance with the resettlement plan. The Restructured Employee Resettlement Plan further clarifies that the subject of the employee resettlement obligation is the new company after the restructuring, and that the transferee of property rights provides guarantees by way of commitment in the contract, and shall also be liable for the debts incurred by the resettled employees and the resettled employees. 3. After the transfer of property rights, the transferor of state-owned property rights has no obligation to undertake the resettlement of employees, but continues to pay the resettlement expenses of employees, which is an act of advance payment. According to the above analysis, since the transferor of state-owned property rights has advanced the cost of employee placement after the transfer of property rights, the new company should have the obligation to repay the advance party after the restructuring. (II) simplify the legal relationship, another lawsuit to deal with the defendant's target company, property rights transferee's claims for breach of contract. 1. The legal relationship of the contract for the transfer of state-owned property rights is different from the labor legal relationship between the target company, the transferee of property rights and the placement of employees. According to the "Property Rights Transfer Agreement" and "Employee Resettlement Plan", or based on the purpose of enterprise restructuring and related restructuring norms, the property rights transferee and the target company have always been the main body responsible for the resettlement of employees and expenses, and shall bear all the resettlement obligations to the employees in accordance with the law, including all the resettlement expenses before and after the restructuring. This is the labor legal relationship between the two companies and their employees. Regarding the property rights transferee, the target company claims that because an investment holding company is lazy to perform the so-called breach of contract, such as land bidding and listing, resulting in the actual cost of employee placement to expand, resulting in its loss, belongs to the property rights transferee and an investment holding company between the contractual legal relationship. With regard to the above-mentioned different legal relationships, the property rights transferee and the target company may file a separate contract dispute lawsuit to claim losses caused by the breach of contract by an investment holding company, but because they do not belong to the same legal relationship, they may not be dealt with in the same case. 2, the property rights transferee, the target company did not file a counterclaim, nor did it claim the loss arising from the default of an investment holding company to prove, so the property rights transferee, the target company's breach of contract should not be dealt with in the same case. Counterclaim is different from the response defense, counterclaim is the defendant against the plaintiff's lawsuit, is an independent lawsuit, has the nature of the lawsuit. The purpose of the defendant's defense is to prove that the plaintiff's claim is partially or completely unfounded by rebuttal, and the purpose of the defendant's counterclaim is to offset or annex the claim of this claim, or to make the claim of this claim lose its meaning. In this case, the property rights transferee, the target company because of the long-term failure to fulfill the obligation of employee placement, so the lack of actual payment of employee placement costs of financial documents, so can not file a counterclaim, only through the way to respond to the defense against an investment holding company's claims. As analyzed above, the defendant's defense can be dealt with separately because it is not the same legal relationship as the plaintiff's claim of an investment holding company. It is based on the above-mentioned legal analysis that the effective judgment supported an investment holding company's claim for the return of hundreds of millions of yuan of employee placement costs to the property rights transferee and the target company, and made it clear that the property rights transferee and the target company could separately claim the loss of breach of contract. 3. practice experience summary Never forget the past, the future guide. In order to avoid the dispute between the placement of employees after the transfer of property rights and the order in which the original transferor of property rights performs the obligations of the contract, it is suggested that it should be clearly stipulated in the property rights transfer contract that the employee placement obligations of the target company should not be based on the completion of the obligations of the transferor of property rights in the property rights transfer agreement as a prerequisite for the performance of the employee placement obligations, the target company or the new company after the restructuring shall fulfill the obligation of employee resettlement on time in strict accordance with the employee resettlement period stipulated in the employee resettlement plan. In addition, in the course of the implementation of the agreement in this case, the land and real estate under the name of the new company after the restructuring have been changed to the name of the property rights transferee, in order to prevent the property rights transferee from transferring assets to evade the obligation of employee placement, the transferee of property rights, the actual controller of the transferee of property rights, etc. may be required to bear joint and several liability for the settlement of the employees of the new company under the "Property Transfer Agreement" and the obligations of the new company under the "Restructured Employee Resettlement Plan" and the debts arising therefrom. 4. relevant legal provisions Article 525 of the the People's Republic of China Civil Code If the parties owe debts to each other and there is no order of performance, they shall be performed at the same time. One party has the right to refuse its request for performance before the other party performs. A party has the right to reject its corresponding request for performance when the other party's performance of the debt is not in conformity with the contract. Article 552 If a third party agrees with the debtor to join the debt and notifies the creditor, or if the third party indicates to the creditor that it is willing to join the debt, and the creditor does not expressly refuse within a reasonable period of time, the creditor may request the third party to assume joint and several debts with the debtor within the scope of the debt it is willing to assume. Article 577 If one of the parties fails to perform its contractual obligations or the performance of its contractual obligations is not in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Article 687 If the parties agree in the guarantee contract that if the debtor is unable to perform the debt, the guarantor shall bear the responsibility for the guarantee, it shall be a general guarantee. The Supreme People's Court on the application<中华人民共和国民法典>The provisions of the Civil Code shall apply to civil disputes arising from legal facts after the implementation of the Civil Code. Civil disputes arising from legal facts prior to the implementation of the Civil Code shall be governed by the laws and judicial interpretations of the time, unless otherwise provided by the laws and judicial interpretations. The legal facts before the implementation of the Civil Code continue until after the implementation of the Civil Code. The provisions of the Civil Code shall apply to civil disputes arising from the legal facts, unless otherwise provided by law or judicial interpretation. The Supreme People's Court on the application<中华人民共和国民法典>Interpretation of the guarantee system (2021.1.1) Article 36 If a third party provides a creditor with a similar commitment document such as a shortfall, liquidity support, etc. as a credit enhancement measure, it has the intention to provide security, and the creditor requests the third party to assume the responsibility for the guarantee, the people's court shall deal with it in accordance with the relevant provisions of the guarantee. If the commitment document provided by the third party to the creditor has the intention of joining the debt or sharing the debt with the debtor, the people's court shall determine that the debt is joined under Article 552 of the Civil Code. If it is difficult to determine whether the commitment document provided by the third party in the preceding two paragraphs is a guarantee or a debt, the people's court shall determine it as a guarantee. If the commitment documents provided by the third party to the creditor do not conform to the provisions of the preceding three paragraphs, and the creditor requests the third party to bear the guarantee liability or joint and several liability, the people's court shall not support it, but it shall not affect its request to the third party to perform the agreed obligations or bear the corresponding civil liability on the basis of the commitment documents. Article 51 of the the People's Republic of China Civil Procedure Law, the plaintiff may abandon or change the claim. The defendant may admit or refute the claim and has the right to file a counterclaim. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 126 The plaintiff adds claims, the defendant makes counterclaims, and the third party makes claims related to this case, which may be tried together. Article 221 If a dispute arises on the basis of the same fact and the parties bring separate suits in the same people's court, the people's court may try the case together. Article 233 The parties to a counterclaim shall be limited to the scope of the parties to the claim. If the counterclaim is based on the same legal relationship with the claims of this suit, there is a causal relationship between the claims, or the counterclaim is based on the same facts as the claims of this suit, the people's court shall hear the case together.</中华人民共和国民事诉讼法></中华人民共和国民法典></中华人民共和国民法典>
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On December 28, 2021, Xu Zongsheng, Secretary of the Party Committee and Chairman of Jinan Urban Development Group Co., Ltd., Yin Guangwei, Deputy Secretary of the Party Committee and General Manager, Dong Qingzhe, Deputy Secretary of the Party Committee, Wang Tao, Minister of Comprehensive Management Department, and Qu Haitao, Deputy Minister of Strategic Planning Department A group of 7 people visited Zhongcheng Qingtai Jinan for exchange. Han Honggang, director of Zhongcheng Qingtai General Office, Geng Guoyu, party secretary and director of Jinan Institute, senior partners Zhang Xinjun, Zhao Kaiyong, Ma Shibin, Tong Yang, partners Dong Guoai, so Xiaoyan and other lawyers warmly received the visiting leaders. Director Han Honggang and Director Geng Guoyu extended a warm welcome to the leaders of Jinan Chengfa Group, and introduced the historical evolution, development process and future planning of Zhongcheng Qingtai Law Firm to the visiting leaders in detail, and put forward suggestions on further strengthening cooperation and exchanges between the two sides. Subsequently, lawyers Zhao Kaiyong and Tong Yang respectively summarized and reported on the perennial legal services and compliance legal services provided to Jinan Chengfa Group in 2021, and put forward new ideas and ideas for future legal services. In addition to the annual legal service work report, Zhang Xinjun, Ma Shibin, so Xiaoyan lawyers on tax planning, company establishment and operation, domestic and foreign financing, asset securitization and other aspects of the business to make special reports. Chairman Xu Zongsheng expressed his gratitude to Zhongcheng Qingtai Law Firm for its warm reception, and gave a detailed introduction to Chengfa Group's current main business sectors, business priorities, outstanding results, and work characteristics. The team's professional ability also expressed appreciation and affirmation, and hoped to further strengthen cooperation with Zhongcheng Qingtai in taxation and financing to achieve mutual benefit and win-win results.
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On December 27, 2021, approved and announced by the Shandong Provincial Market Supervision Administration, the "Patent Value Evaluation Standard" became the local standard of Shandong Province. The standard number DB37/T 4455-2021 will be implemented on January 27, 2022. The main drafting units of the standard are Zhongcheng Qingtai (Jinan) Law Firm, Shandong Bochuang Intellectual Property Service Co., Ltd., Shandong Institute of Standardization, Qilu University of Technology (Shandong Academy of Sciences), Jinan University and other 13 units. As one of the main drafters of the standard, Mu Xun, lawyer of the second intellectual property department of Zhongcheng Qingtai, participated in all stages of standard preparation, application implementation, test verification and expert review, and responsible for the organization of contact work. This standard is applicable to the evaluation of the legal value and technical value of the authorized valid invention and utility model patents in the process of patent transfer, licensing, pledge, investment and financing. The evaluation of the value of patents, the selection of patents and the evaluation of the advanced nature of patent technology can be carried out by reference. The patent value index system constructed by the standard is based on the patent's own attributes, combined with the actual needs of patent value analysis, and determines the specific content and method of patent value analysis. From the two dimensions of legal value and technical value, the evaluation index system has established four first-level indicators and 20 second-level indicators, including patent protection reliability, patent advance progress, patent implementation degree and patent transfer degree. Based on the evaluation criteria provided in the Patent Value Evaluation Specification, the evaluation experts score each index separately, and give the comprehensive score score of the evaluation patent according to the calculation model given in the standard. With the enhancement of China's comprehensive strength, various enterprises and institutions have accumulated more and more intellectual property assets worldwide, especially the number of patent applications has increased significantly year by year. Through the formulation of unified standards, the standardization of evaluation institutions and evaluation activities is promoted, and the publicity and application of evaluation results are promoted, which will reduce the risks in the transfer, evaluation, pledge, investment and financing of patent rights, it plays a positive role in promoting the transfer and transformation of scientific and technological achievements and optimizing the business environment.
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On December 26, 2021, the 15th "Learning in Taishan" Enterprise Development Annual Conference hosted by Tai'an Industry and Information Technology Bureau and undertaken by Shandong Huaxia Cornerstone Enterprise Management Consulting Co., Ltd. was grandly held in Tai'an. There are more than 90 online and more than 700 online, with a total of nearly 800 entrepreneurs from all walks of life participating. Lawyer Li Zhenzhong of Zhongcheng Qingtai Jinan Institute was invited to participate in and share the keynote speech "The Road to Listing on the Beijing Stock Exchange". Combined with rich practical experience, lawyer Li Zhenzhong gave an in-depth explanation on the background, significance, issuance conditions and listing procedures, legal provisions and market data of the Beijing Stock Exchange, and the main issues concerned by the IPO of enterprises. it was highly appraised and warmly responded by the participants. Subsequently, the meeting held a grand "Zhongcheng Qingtai and Huaxia Vision Strategic Cooperation" signing ceremony. Lawyer Li Zhenzhong, deputy director of Zhongcheng Qingtai Law Firm, and Mr. Li Jinshan, executive director of Shandong Huaxia Vision Enterprise Management Consulting Service Co., Ltd., respectively signed a contract on the future strategic cooperation on behalf of the two units. Zhang Bin, deputy director of Taian Municipal Bureau of Industry and Information Technology, and other major leaders witnessed the signing ceremony together with Yu Xuedong, director of Shandong Hualin Law Firm. This cooperation deepens the contact and cooperation between Zhongcheng Qingtai Law Firm, Tai'an Municipal Government and Tai'an entrepreneurs, and provides a cooperation platform for Zhongcheng Qingtai to better serve Tai'an enterprises.
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In practice, it is often encountered that after the state-owned land use right holder obtains the land use right through the transfer method, it cannot be developed due to various reasons, and it is necessary to transfer the land use right and the above-ground buildings and attachments. This paper summarizes the common transfer methods in practice, and briefly analyzes the advantages and disadvantages of various methods, so as to formulate a more targeted plan. Transfer mode of 1. construction in progress The process of transfer of construction in progress is that the acquirer and the transferor transfer the construction in progress owned by the transferor and the land use rights attached to it to the acquirer by way of transfer of construction in progress. 1. Program advantages For the acquirer, after acquiring the ownership of the construction in progress, the acquirer entrusts the team to carry out project management, engineering construction, design and research and development, cost and cost, etc., which has a large margin, which is conducive to giving full play to the advantages of the acquirer's management and development experience, and also facilitates the acquirer to integrate its brand advantages into the construction in progress project, so that the acquisition target can appreciate after the transaction. 2. Key points of concern (1) Conditions of transfer According to the provisions of Article 39 of the the People's Republic of China Real Estate Administration Law, if the land use right is obtained by way of transfer, more than 25% of the total development investment shall be completed when the real estate is transferred. Therefore, the acquirer needs to intervene in the early stage, invest in the project in advance, and then trade when the project reaches 25% of the investment intensity. (2) State-owned enterprises enter the transaction. According to the provisions of the Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises, state-owned and state-controlled enterprises and state-owned actual control enterprises implement the external transfer of production equipment, real estate, construction in progress, land use rights, creditor's rights, intellectual property rights and other assets of a certain amount or more. After performing the corresponding decision-making procedures in accordance with the internal management system of the enterprise, it shall be publicly carried out in the property rights transaction institution. The Notice of the State-owned Assets Supervision and Administration Commission of Shandong Province on Further Regulating Matters Relating to the Transfer of Assets of Provincial Enterprises, issued on November 15, 2021, once again emphasizes that "the transfer of assets of each enterprise shall be carried out in an open manner, with strict control over the non-public agreement method. The transfer of assets with an original book value of more than 3 million yuan (including 3 million yuan) or a net book value of more than 1 million yuan (including 1 million yuan) shall, in principle, in principle, in a single or in the Shandong property rights, shall be carried out, in." Therefore, in the case of meeting the transfer conditions, the state-owned enterprises that meet the public transfer conditions should perform the procedures of entering the market for listing when transferring the construction in progress. (3) Tax issues The types of taxes involved in the transfer of land use rights include value-added tax and surcharges, land value-added tax, deed tax, stamp tax and income tax, which are heavier. (4) Risk of delisting failure In the absence of delisting of the transferee or other failure to reach cooperation, there is a risk that the cooperative development funds will be recognized as loans in the early cooperation process, resulting in the risk that the transferor will bear the return of funds and the payment of capital occupancy fees after the failure of the project cooperation. 2. equity transfer method The state-owned land use right holder (the transferor), by transferring the company's equity or increasing its capital, enables the acquirer to indirectly control the real estate resources in the name of the transferor by holding the transferor's equity and to obtain income from the business activities of such real estate resources through the acquisition of equity or capital increase. 1. Program advantages The transfer of land through equity transfer, some tax departments allow the temporary non-payment of land value-added tax and other taxes, can reduce the current land transfer costs. 2. Key points of concern (1) There is a risk that the equity transfer agreement will be deemed invalid. After searching the relevant cases, the Supreme People's Court (2014) Min Er Zhong Zi No. 264, the Supreme People's Court (2013) Min Yi Zhong Zi No. 138, and the Jiangsu Provincial Higher People's Court (2014) Su Shang Zai Zhong Zi No. 0006 The case shows that some court judgments believe that the transfer of company equity and the transfer of land use rights as company assets are two independent legal relationships, the current law does not have the effect of mandatory provisions prohibiting the transfer of land use rights or real estate projects in the form of equity transfer of real estate project companies. However, there is another judgment point of view in practice. Taking the Fuyang People's Court (2015) Hangfu Shang Chu Zi No. 3183 case as an example, the court held that: the behavior is fundamentally based on the equity transfer agreement. The essence is the sale of state-owned land use rights. This act is not a legal act and is a legal form to cover up the illegal purpose. Therefore, it is considered that the equity transfer agreement is a legal form to cover up the illegal purpose and should be deemed invalid. (2) There is a risk of land value-added tax being levied by the Inland Revenue Department. According to the Official Reply of the State Administration of Taxation on the Levy of Land Value-added Tax on the Transfer of Real Estate in the Name of Equity Transfer (Guoshuihan [2000] No. 687), in view of the fact that Shenzhen Energy Group Co., Ltd. and Shenzhen Energy Investment Co., Ltd. jointly transfer 100% of the equity of Shenzhen Energy (Qinzhou) Industrial Co., Ltd., and these assets in the form of equity are mainly land use rights, above-ground buildings and attachments, this should be taxed in accordance with the provisions of the land value-added tax. In practice, there are disputes between local tax authorities on whether to pay land value-added tax and deed tax through equity transfer. 3. to change the land to the subsidiary and develop the way This method refers to the parent company and the land management department to sign the "state-owned land use right transfer agreement", and pay the land transfer fee, obtain the state-owned land use right certificate and obtain the land transfer fee compliance bill into the account, and then plan to set up a wholly-owned subsidiary in the project location or the project company to develop the land. There are usually two ways to change the land and above-ground attachments to the name of the subsidiary: first, to invest in the newly established subsidiary by valuing the land and above-ground attachments. Second, according to the net value of free transfer to the name of the new subsidiary. (I) valuation investment equity method 1, still need to meet the conditions for the completion of the total development investment 25%. Article 3 of the Provisions on the Administration of Urban Real Estate Transfer stipulates that "the transfer of real estate referred to in these Provisions refers to the act of the real estate right holder transferring his real estate to another person through sale, gift or other legal means. The other legal means referred to in the preceding paragraph mainly include the following acts: (1) taking shares at the price of real estate, establishing an enterprise legal person with another person, and changing the ownership of the real estate......". Paragraph 5 of Article 2 of the Guiding Opinions of the General Office of the State Council on Improving the Secondary Market for the Transfer, Lease and Mortgage of the Right to the Use of Construction Land (No. 34 [2019] of the State Council), "Clarify the form of transfer of the right to the use of construction land. All kinds of acts leading to the transfer of the right to use construction land are regarded as the transfer of the right to use construction land, including the transfer of the right to use construction land in the form of sale, exchange, gift, capital contribution, judicial disposal, asset disposal, merger or division of legal persons or other organizations. Where the right to use construction land is transferred, the ownership of above-ground buildings and other attachments shall be transferred together. If the transfer of real estate is involved, the relevant procedures for the transfer of real estate shall be handled in accordance with the relevant laws and regulations on the transfer of real estate". Therefore, the land use right is regarded as the transfer of land use right. Therefore, in the process of making shares, the transferor still needs to complete the investment bottom line of 25% of the total development investment in accordance with the provisions of Article 39 of the the People's Republic of China Real Estate Management Law. 2. Heavy tax burden According to regulations such as the Regulations on the Pilot Program of Changing Business Tax to Value-Added Tax in Annex II of Caishui [2016] No. 36, investment in intangible assets such as land and real estate such as houses should be used as sales to pay value-added tax, and the amount of output tax can be calculated., Issue a special VAT invoice to the invested enterprise as a proof of deduction of input tax. Therefore, investments in non-monetary assets are subject to VAT as sales. Article 2 of the Circular of the Ministry of Finance and the State Administration of Taxation on the Enterprise income tax Policy for Investment in non-monetary assets (Finance and Taxation [2014] No. 116) stipulates: "when an enterprise invests abroad with non-monetary assets, it shall evaluate the non-monetary assets and calculate and confirm the income from the transfer of non-monetary assets according to the fair value after deducting the tax basis after the assessment." Therefore, the capital contribution at the price of land use rights shall be subject to enterprise income tax. (II) free transfer method 1, state-owned enterprises must meet the conditions for free transfer. According to Article 2 of the Interim Measures for the administration of the free transfer of state-owned property rights of enterprises, the term "free transfer of state-owned property rights of enterprises" refers to the free transfer of state-owned property rights of enterprises between government agencies, institutions, wholly state-owned enterprises and wholly state-owned companies." If the conditions for free transfer are met, the approval process shall be fulfilled. 2. Tax advantages Article 3 of the Notice of the Ministry of Finance and the State Administration of Taxation on Issues Concerning the Treatment of Enterprise Income Tax on Promoting Enterprise Restructuring (Caishui [2014] No. 109) stipulates that the transfer of equity or assets between 100 per cent of resident enterprises directly controlled by the same or 100 per cent of resident enterprises directly controlled by the same or the same number of resident enterprises is based on the net book value, where there is a reasonable business purpose, the main purpose is not to reduce, exempt or postpone the payment of taxes, the equity or assets transfer does not change the original substantive business activities of the transferred equity or assets within 12 consecutive months, and the transfer-out enterprise and the transfer-in enterprise have not confirmed the profit or loss in accounting, the following provisions may be selected for special tax treatment, that is, the transfer-out enterprise and the transfer-in enterprise do not recognize the income, determined by the original net book value of the transferred equity or asset, no income tax may be paid; at the same time, the transfer is based on the original book value, no value-added, therefore, no value-added tax or land value-added tax is required. The second paragraph of Article 6 of the Notice of the Ministry of Finance and the State Administration of Taxation on Further Supporting the Restructuring and Reorganization of Enterprises and Institutions (No. 37 [2015] of the Ministry of Finance) stipulates: "The transfer of ownership of land and houses between enterprises belonging to the same investment entity includes between the parent company and its wholly-owned subsidiaries, and between wholly-owned subsidiaries of the same company, the transfer of land and house ownership between the same natural person and the sole proprietorship or one-person limited company established by the same natural person shall be exempted from deed tax." The free transfer of land use rights between parent and subsidiary companies is exempt from deed tax. In summary, the main factors affecting the company's decision to transfer land use rights to the outside world are: the company's own land development progress; tax costs; project plan completion time requirements; and other issues involving state-owned procedures. Therefore, in practice, each project company should consider the plan comprehensively and formulate a practical implementation plan for the company on the basis of legal compliance.
2021-12-28
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
